Prosecuting KSM: Harder Than You Think

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Khalid Sheikh Mohammed appears in Guantánamo Bay, Cuba

There are hard legal cases, and there are high-profile legal cases, but the prosecution of Khalid Sheikh Mohammed may turn out to be one of the hardest high-profile cases ever. Attorney General Eric Holder announced Friday that Mohammed, the confessed architect of the Sept. 11 attacks who was waterboarded 183 times in U.S. custody in March 2003, will be put on trial in the Southern District of New York along with four other Sept. 11 plotters. Between the imperative of bringing an alleged mass murderer to justice and the challenge of overcoming evidence tainted by torture, the case will be messy, politically charged — and closely watched by the entire country.

The job of delivering a conviction will fall to the newly appointed U.S. Attorney for the Southern District, Preet Bharara. Previously an assistant attorney in the Southern District prosecuting the Mob, Bharara made his name as the Senate staffer who helped drive Attorney General Alberto Gonzalez from office by uncovering and investigating the Bush Administration's firing of prosecutors for allegedly political purposes.

Bharara will have to make the case under very unusual circumstances. "The challenge for prosecutors is to try and present a case that is not tainted by evidence that is inadmissible," says Joshua Dratel, a criminal lawyer in New York who has appealed cases against terrorists on the basis of torture allegations. Holder testified at his Senate-confirmation hearings earlier this year that he believes waterboarding is torture, and any evidence obtained after Mohammed's waterboarding will likely be inadmissible.

That means the government will likely have to rely on evidence that predates the 2003 waterboarding, as well as Mohammed's 2002 statement to al-Jazeera in which he took credit for the attack. Holder said at his press conference announcing the trials Friday that he has seen evidence previously unavailable that made him confident the prosecution will be successful. "If the government's going to prosecute Mohammed for 9/11, it will have diligently and thoroughly scrubbed the evidence to obtain certainty" that it can make the case, says David Laufman, a former prosecutor in the Eastern District of Virginia, who tried and won cases against al-Qaeda members charged in terrorist plots.

But even if the government can make a strong case without the tainted evidence, Mohammed's treatment could cause problems. It's possible — though not likely — that a court could rule that the government doesn't have the right to prosecute someone who has been severely abused in custody. (Previously, suspects have been released even when their abuse didn't prejudice evidence against them, but there's no clear precedent for terrorism cases.) Other issues likely to be raised by the defense, says Dratel, are finding a jury that can be considered impartial, especially blocks from the World Trade Center site, and whether Mohammed's rights to a speedy trial have been violated.

Bharara will not be alone on the case. Holder jointly assigned it to him and Neil McBride, the U.S. Attorney for the Eastern District of Virginia. The Justice Department says the two men work well together, but not everyone agrees. "That's going to be ugly," says a former prosecutor who knows both men. The former prosecutor predicts that the Southern District will "run the show" because of its knowledge of the judges in New York, the proximity to the trial and the resources the office will be able to bring to bear.

Some Republicans and family members of the victims argue that the spectacle of trying Mohammed in federal court, instead of trying him before military commissions or simply holding the suspects indefinitely, risks endangering New Yorkers, exposing classified material and giving the plotters a platform to make themselves martyrs. "These terrorists planned and executed the mass murder of thousands of innocent Americans," Senator John Cornyn of Texas said Friday. "Treating them like common criminals is unconscionable."

The dispute over whether to try Mohammed in criminal court may not be resolved until a verdict is reached, but the debate is already raging. Says Dratel: "It's a victory for our system of justice and for the rule of law." Others disagree but think Bharara will succeed. "It's a dubious decision to send the case to federal court to be criminally prosecuted," says former top Bush White House lawyer William Burck, who worked with Bharara in the Southern District. "But if there's anyone who can pull it off, it's Preet Bharara."